We have just received the CEB response to the complaint presented on Friday, September 30th. The CEB refers the question to the Census Bureau, as the body in charge of verifying (validating) the endorsements (signatures) collected. The CEB response is dated on Wednesday, October 5th, although until the morning of Friday 7th we did not receive the CEB call asking for a fax number to send us their reply (they do not use email). Today, Monday, October 10th, we got that fax.

What was the reply?

The Claimant expounds the limitations that restricting the type of electronic signatures admissible, as per the Addendum on Technical Specifications to Instruction 7/2011, of September 13th, 2011, from the Central Electoral Board, regarding the procedure for validating signatures in support of candidacies to the Congress of Representatives, the Senate and the European Parliament as envisaged in Articles 169 and 220 of the LOREG.

The Claimant requests that other types be also accepted, as included in the standards in section III.4.4a. of the Interoperability Technical Standards implementing the National Interoperability Scheme, as approved by Resolution on July 19th, 2011, from the Secretary of State for Civil Service.

The Census Bureau informs that they are not prepared to meet the request so it can be applied for the General Election on November 20th.

Notwithstanding the imposed restriction above, any interested party can provide a verification system on their own, in compliance with section 5.6 of the aforementioned Instruction.

What does the reply mean?

It is a bit strange. WHAT IS NOT SAID is almost more important than what is said:

Nowhere neither the CEB nor the Census Bureau go into the substance of the matter of MiFirma’s complaint, namely, whether the CEB has power to further restrict the signature formats accepted by the Technical Interoperability Standards (TIS).

Nowhere neither the CEB nor the Census Bureau contradict the allegations in MiFirma’s complaint, namely, that the CEB cannot restrict unwarrantedly the signature formats accepted by the Technical Interoperability Standards (TIS). In other words, the CEB does not assert that they have the authority or power to restrict the signature formats, nor that political parties or platforms have the obligation of submitting to such restrictions.

Nowhere in their reply the CEB imply it is compulsory to use only the signature format described in Addendum on the Instruction, they state simply that the census Bureau is “not prepared to meet the request” in time for the November 20th election. What follows from that is not that the remaining signature formats accepted by the TIS are not valid, but that the Census Bureau does not have the appropriate verification systems to validate them.

The last sentence recognizes the existence of an “imposed restriction” and states that, notwithstanding this, the interested party (MiFirma/Tractis) can provide a verification system complying with Section 5.6 of said Instruction of their own accord.

In short, the CEB and the Census Bureau leave the door opento any signature format complying with section 5.6 of the Instruction, as long as the interested party brings with him a verification system capable of validating the signatures that the CEB-Census Bureau system cannot validate at present. And what does Section 5.6 of the Instruction say?

5.6. The collection of signatures by means of electronic signatures shall be always deemed valid whenever it complies with Law 59/2003, of December 19th, on Electronic Signatures, as amended by Law 57/2007, of December 28th, on Measures to Promote the Information Society. Therefore, the signatures shall have to be executed with an electronic certificate recognized by the Electronic Site of the INE (https://sede.ine.gob.es). To that end, the representative of the candidacy or of the group of voters shall inform the competent Electoral Board of the electronic signature and verification system used, which shall include a time stamp of the signature. Hereto attached is an Addendum containing the statistical criteria for certification by sampling and the technical specifications for signature systems.

Why all the fuss?

From reading Section 5.6 one could deduce that MiFirma and Tractis are creating unnecessary fuss about something that was already clear in the Instruction. After all, 5.6 says that the collection shall be valid if it complies with the law on electronic signatures, employs certificates listed by the INE and goes on to mention that the electronic signature and signature verification system used may be selected by the user. The problem comes in the last sentence of the paragraph. The paragraph has 2 parts: a first part that acknowledges everything that MiFirma defends in their complaint. And a second part, the last sentence, that includes a reference to an Addendum laying down the “technical specifications for signature systems“, but this Addendum only mentions one signature format, the one that can be validated by the Census Bureau in time for the elections of N20.

In short, far from being trivial, the claim by MiFirma is very relevant and the CEB response very enlightening. Relevant because MiFirma’s complaint denounced precisely the inclusion of that last phrase (or “imposed restriction”, as the CEB themselves recognize). Clarifying because the CEB reply is very careful not to mention “other signature systems” different from those in the Addendum, and only says that “other verification systems” are acceptable. Without any wish of a forced interpretation, we understand that, when resorting to 5.6, the CEB are referring really to the first part of the paragraph and not to the second (last sentence) and, thus, open the door to the endorsements collected by MiFirma.

The “fuss” was needed and very much so. It is extremely important that precedents setting unwarranted limitations (e.g.: certain signature formats) to the use of electronic signatures by political initiatives are not established.